Citation Nr: 1447922
Decision Date: 10/29/14 Archive Date: 11/05/14
DOCKET NO. 10-32 004 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to service connection for myasthenia gravis.
2. Entitlement to service connection for vertigo.
REPRESENTATION
Veteran represented by: Military Order of the Purple Heart of the U.S.A.
WITNESSES AT HEARING ON APPEAL
Veteran and his Spouse
ATTORNEY FOR THE BOARD
Jennifer R. White, Counsel
INTRODUCTION
The Veteran served on active duty from April 1968 to November 1969.
This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
The Board notes that entitlement to service connection for a right knee disability and migraines were granted in an August 2012 rating decision. Thus, these claims are no longer in appellate status and the Board does not have jurisdiction.
In November 2011, the Veteran testified at a hearing before a Decision Review Officer. A transcript of that proceeding is of record.
In December 2012, the Veteran testified at a Board videoconference hearing. A transcript of that proceeding is of record.
The issue of entitlement to service connection for myasthenia gravis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
The preponderance of the evidence indicates that the Veteran's vertigo is related to active service.
CONCLUSION OF LAW
Vertigo was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000
Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claim for service connection for vertigo. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2013) or 38 C.F.R. § 3.159 (2013).
Regulations and Analysis
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).
Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009).
In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.
Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:
(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);
(2) the layperson is reporting a contemporaneous medical diagnosis, or;
(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.
Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).
In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).
After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
The Veteran and his spouse testified at his December 2012 hearing that his dizziness in-service has continued until the present.
The Veteran's service treatment records indicate that the Veteran complained of syncopal episodes and blacking out during September 1969.
A letter from the Veteran's private physician dated August 2009 indicates that the Veteran developed dizziness in September 1969, treatment note indicates that the physician began treating the Veteran in March 1967, and it has continued to the present.
The Veteran was afforded a VA authorized examination in May 2012. The examiner diagnosed him with benign paroxysmal positional vertigo. The examiner noted an April 2012 Electronystagmogram (ENG) result that indicated a positive response to the Dix-Hallpike with the right ear is consistent with mild benign paroxysmal positional vertigo involving the right posterior semicircular canal and is considered a peripheral vestibular finding. The examiner indicated that he could not resolve the etiology of the Veteran's disability without resorting to speculation; further noting that a fall could cause the benign paroxysmal positional vertigo but there it was unclear whether the Veteran lost consciousness from the fall in-service.
The Veteran contends, with support from his from medical provider from 1967 to 2009, that he first experienced vertigo in-service and the episodes have continued to the present time. Additionally, the Veteran is competent to determine that he has experienced vertigo since the documented in-service incident and the Board finds his contentions and testimony to be credible. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). Additionally, the VA authorized examiner did not come to a conclusion concerning the etiology of the condition and did not comment on chronicity since service. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. at 23 (medical opinions which are speculative or inconclusive in nature cannot determine a claim). Thus, taking into account all of the evidence, the Board finds the preponderance of the evidence indicates that the Veteran's vertigo is related to active service.
ORDER
Entitlement to service connection for vertigo is granted.
REMAND
The Veteran contends that his myasthenia gravis is related to Agent Orange exposure during service. He does not contend that he had the condition in-service; his November 2011 hearing testimony indicates that the Veteran began having symptoms of the claimed disability in 1988.
The Board notes that the Veteran has not had a VA examination to determine if his myasthenia gravis is related to Agent Orange exposure, any other incident of service, or any service-connected disability. Thus, the Veteran should be afforded such examination on remand.
Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing medical records from the VAMC.
2. Schedule the Veteran for a VA examination to determine the nature and etiology of his myasthenia gravis. All diagnoses should be identified and, for each, the examiner should opine whether it is at least as likely as not that the current disability is related to active service, any incident of active service to include Agent Orange exposure, or any service-connected disability. All opinions should be accompanied by a clear rationale. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative.
3. Thereafter, the RO should readjudicate the Veteran's claims, to include consideration of any records associated with the claims file since the most recent supplemental statement of the case. If such action does not grant the benefits claimed, the RO should provide the Veteran a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
______________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs